Dismissal in Nigeria Labour Law

By Celestine N. Omehia

It is important to note that this is the second edition of this book and like I rightly pointed out in the first edition, the choice of this title and the subject matter was not a thing of accident. It was predicated upon my observations of the unwholesome Labour Relations in the Nigerian Industrial set-ups. As at the time of making up my mind about this book, there was an unequal balanced relationship between the employers of labour in all segments of our Labour Relations on the one hand and those employed to do any kind of work on the other. The other reason is my realization that there is every need for legal practice to go into minute specialization. We could specialize in every aspect of the law for purposes of effective practice, specialization and representation.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Aug 2, 2011
• ISBN: 9781456785550

Celestine N. Omehia

Celestine Omehia was called to the Nigerian bar in 1986 after his masters degree graduation in International Law (LLM) from the University if Hull, England. After two years part time lectureship experience in the faculty of law, Rivers State University of Science and Technology, he took to politics as a career and was appointed a member of rivers state executive council where he served as commissioner for education for 22 months. Since 1989, till date he has remained in politics, holding different political position. He has served as special assistant to the governor of river state, Dr. Peter Odili, later as senior special assistant to the governor and currently, executive assistant to the governor on administration and inter-religious matters. In addition, he was a member of the governing council of Rivers State University of Science and Technology. He has served the Peoples Democratic Party (PDP) in various capacities amongst which includes his membership of the party’s national convention in 2001, 2001 and was the chairman of the electorial committee in Enugu State in 2002. While still in the service of Rivers State Government, the governor, Dr. Peter Odili loaned his services to the presidential campaign headquarters Abuja, where he served as the director, finance and administration in the popular legacy house, Mr. President, Chief Olusegun Obasanjo was successfully elected for the second term by the grace of God. On April 14th 2007, Sir Celestine Omehia was elected governor of Rivers State and subsequently sworn-in on May 29th 2007 as the 4th democratically elected governor of the state. As God would have it, on October 25th 2007, he was removed from office vide a Supreme Court judgment. In pursuit of professional perfection, Mr. Omehia has established a law firm, Saint Cyprian Chambers and in 1944, wrote his first professional book “DISMISSAL IN LABOUR LAW”. The chambers is now under the management of other lawyers. Mr. Omehia is a practicing Christian and a member of the order of the knight of Saint Mulumba (KSM) of the catholic church, his wife lady.

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Contents

DEDICATION

FOREWORD

ACKNOWLEDGMENT

PREFACE

STATUTES CITED

ABBREVIATIONS

CHAPTER ONE

CHAPTER TWO

CHAPTER THREE

CHAPTER FOUR

CHAPTER FIVE

DEDICATION

To

Kelachi Celestine Omehia

(We call him Kelce),

Keturah Uchechi Cummings-Omehia

and

Kechikamma Celestina Omehia

(K K)

FOREWORD

The first edition of this book was published in 1994, some twenty years after the promulgation of the Labour Act, Cap L 1 in 1974. It appears to me that the aims of this edition remain the same as those of the first edition, namely, to explain and discuss the general principles of the law of contract of employment as relates to dismissal from employment.

The legal regulation of employment relationship has at its core the common law of the contract of employment which is now largely regulated by legislations. In the case of Nigeria, the Labour Act of 1974 governs the regulation of the individual employment relationship. However, apart from the amendments of 1986, 1988 and 1989, no significant amendment has been made to the Labour Act, since it came into operation over 35 years ago.

Despite the dominance of legislation in regulating the individual employment relationship, the common law still remains at the core of the contract of employment and, indeed, the law applicable to dismissal from employment.

In the past, contracts of employment were known to the law as master and servant contracts. However, today this phrase is not much in use, as it is regarded as archaic and in its place is found the expression contract of employment or contract of service.

Where an employee is guilty of sufficient misconduct in his capacity as an employee, he may be dismissed. A dismissal from service could be summarily (that is without notice) or wrongfully (wrongful repudiation or wrongful purported termination) or constructive. The legal consequences of these may give rise to litigation. This is why the subject covered by this book is significant and will always be topical.

Although the title of the book emphasises dismissal from employment, its contents go beyond that, for it, in addition, covers topics such as Employment Relations and Termination of the Contract of Employment, in order to give the reader of the book a wider scope and a better understanding of the subject.

Not only the employer and the employee will find this work useful but also all legal practitioners, law lecturers, law students, labour officials and all those who desire to be well-informed about the relationship between the employer and the employed.

Hon. Justice M.L. Uwais, GCON

Former Chief Justice of Nigeria Abuja

ACKNOWLEDGMENT

The writing of this book has come a long way with supports from all and sundry. Many friends both near and far contributed immensely in putting both the first and second editions together.

The initial legal materials used in the first edition of this work were made available to me by Owhonuiche Chambers (Chief Ikechi Wagbara and Temple Owhonda-Wopara Esq.) Their moral supports cannot be undervalued.

When the materials for this edition were gathered the ideas were discussed first with Mr. James Ezike and later with Mrs. Nelly Onwuegbuna, both colleagues of mine in the legal profession. Their ideological contributions in no small measure aided the take off of the edition.

My great appreciations also go to Hon. Justice (Mrs.) M. U. Odili, now Justice of the Supreme Court Of Nigeria in Abuja, for going through the manuscript of the first edition painstakingly and proffering legal advice and knowledge at a time I needed them most.

In the same vein, the professional assistance rendered by Hon. Justice Niki Tobi, now retired Justice of the Supreme Court is inestimable. He did not only tutor me on how to put materials together for the book, he also accepted and wrote the forward to the first edition of this book. I cannot thank him enough.

Again, I must thank specially a respected legal luminary, Justice Mohammed Lawal Uwais (retired), a former Chief Justice of Nigeria, for putting the icing on the Cake with his expectedly brilliant Foreword in this second edition. I am eternally grateful.

My indebtedness for the success of this book also goes to my wife Tonia who had consistently supported my efforts in all my endeavours in life that I am now what I am. My good friend, Mr. Bath Emuekpere aided in piecing the manuscript together and corrected all the typographical errors such that the book has come out what it is now. Thank you Bath.

Finally, I thank the Almighty God for the wisdom and guidance in putting this work together. May He also bless all who assisted in any way, whether mentioned or not in this acknowledgement.

Sir C. N. Omehia.

PREFACE

It is important to note that this is the second edition of this book and like I rightly pointed out in the first edition, the choice of this title and the subject matter was not a thing of accident. It was predicated upon my observations of the unwholesome Labour Relations in the Nigerian Industrial set-ups. As at the time of making up my mind about this book, there was an unequal balanced relationship between the employers of labour in all segments of our Labour Relations on the one hand and those employed to do any kind of work on the other. The other reason is my realization that there is every need for legal practice to go into minute specialization. We could specialize in every aspect of the law for purposes of effective practice, specialization and representation.

The core of this book is therefore to look into this relationship and balance the difference according to the fundamental principles of our laws. It is unfortunate that the differences between the rights and interests of the employee and employer had been taken for granted by the society at large. Ironically, this has led to a situation where both the employee and employer are ignorant of the violation of each other’s rights and interests in their relationship.

My findings in this analysis revealed that both the employee and employer need a lot of information which they ought to acquire through formal and informal sources. Albeit, there are numerous court decisions in this direction, but hardly will either the employer or the employee bother finding out where and how these court decisions stand, as this is widely regarded as the duty of the lawyers. Also, the ignorance is borne out of the fact that specialized information in this direction is grossly inadequate. This work is aimed at bridging this gap by making available this specialized information to both employers and employees. Naturally, every labour-oriented organization needs specialized information in all dimensions of their industrial relations for decision making, as this will reduce the unnecessary acrimony between the employee and the employer.

This book is divided into five chapters. Chapter one acts as a guide to the subsequent legal analysis. It examines the salient factors in employment relations in every organization and explains an Employee and Employer. The substance of employment contract, written particulars of Employment, Trade Union and Collective Agreement requirements, Duties and Rights of both the employers and the employees are also examined in Chapter one of this book. All the implied duties of the Employee are clearly captured and explained.

Chapter two basically defines termination of contract of employment as distinct from a general contract. It explains the procedure for termination. For Example, by Notice given by either of the parties according to the statutory requirements. However, where the requirement for notice is not followed, and there is a provision for payment in lieu of notice it must be followed accordingly. The chapter ended by stating clearly that a contract of employment, like any other, could be terminated by an act of Frustration.

Chapter three of this book defines dismissal as different from termination and explains what to look out for in the distinction. The legal procedures for dismissal are properly laid out. The mistaken ideas or notions of the employer on procedural applications are brought to the fore. It is the requirement of the law that the rules of natural justice be followed in dismissing an employee. These rules are properly examined in this part of the book. The chapter explains constructive and summary dismissal and explains issues that could lead to either of them. Wrongful and unfair dismissals are also explained, as well as the benefits and consequences of each are also pointed out.

Chapter four deals with natural justice as a constitutional matter in a general term, and as a term touching and concerning employment relationship in particular. Therefore, all the conditions of natural justice including fair hearing and its procedures, legal representation etc must be followed. The chapter concludes that the onus of proof that there was no breach of the principles of Natural Justice is on the employer, while the burden of proof for the claim of bias is on the employee.

Finally, Chapter five provides for the remedies available to the employee and employer either on termination of the contract of employment or on the dismissal of employee by the employer. Both the Common Law and the statutory remedies are all examined in Chapter five. However, the measure of damages available to the parties will depend on the mitigating circumstances where it applies. Reinstatement and Injunctions are other remedies that an employee could claim where a term is breached by the employer. The chapter establishes that, a dismissal declared by the court to be a nullity gives room for automatic reinstatement without more.

In putting this work together I have in mind that, the present economic predicament Nigerians are facing will force some employers of Labour into dismissing their employees without following the proper legal procedures. In the same vein, some employees in search for Greener Pastures may decide to leave their present employment without complying with the terms of their employment. This book acts as a reminder to both the employee and the employer in this respect.

For students and the lecturers of law in our universities, this book only provides a fractional need of the labour or Industrial Law as a whole. Nevertheless in the area of employment law, it will guide you substantially in the necessary aspects of it. I had it in mind to produce an easy reference book for the students and for the use of the lecturers. For academic purposes, this book like any other is not the ultimate, bearing in mind the changing nature of our industrial society and the dynamism in our laws. However, it is very important for our needs now. Where the need arises, I shall update accordingly. This book is also written for the general Nigerian Society who are aspiring to be employers of labour and those applicants who will wish to know their rights on employment. Because of the changing society, every segment of the society is concerned with this book.

The approach used here is to examine the labour relationship between the employee and the employer according to the contemporary changing society. The book then progresses towards distinguishing the different terminologies in employment. It also examines the proper steps expected of an employer in dismissing an employee. The steps are necessary as not to nullify the acts of the employer as selfish, illegal and malicious. Though, the book is predominantly on the right of the employee on dismissal, the rights and remedies of the employer are also examined in various parts of this book.

On the whole however, this book does not claim monopoly of knowledge or the only source of academic excellence in dismissal cases. Further research may be needed according to the changing needs of our society. The door for this is open.

Celestine N. Omehia Esq.

Saint Cyprian Chambers,

2A, Ikwerre Road

Box 12234,

Port Harcourt,

Nigeria.

STATUTES CITED

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (1989)

EMPLOYMENT PROTECTION (CONSOLIDATION) ACT, 1978

ENGLISH EMPLOYMENT ACT OF 1980

EVIDENCE ACT, 1945 [AS AMENDED]

INTERPRETATION ACT NO. 1 OF 1964

LABOUR DECREE 1974

LIMITATION ACT OF 1966

TRUCK ACT 1831

ABBREVIATIONS

CHAPTER ONE

Employment Relations

HISTORICAL DEVELOPMENT

Traditionally, the employment relationship which existed was that of master and slave. In traditional Nigerian society it was the only means of both domestic and agricultural work. History holds it that people were recognized in the society by virtue of the number of slaves they owned. During the advent of civilization both in Nigeria and world over, the use of the term ‘master and servant’ succeeded the former term Master and Slave.

The term MASTER AND SERVANT has been severally used to describe the labour relationship between two or more persons engaged in services or production. The description connotes some economic superiority and exploitation by one person against the interest of the other or others.

In the ordinary general labour sense, a master is the person who hires the labour or services of another. He is at the apex of the labour relations. While the person whose services are being hired becomes the servant. He is below the throne of the master.

In the dept of labour relationship, that term should be regarded as a misnomer. In an employment context, the relationship is that of employee and employer. The person whose services are being hired (though being paid some wages as consideration for, the labour) is not and should not be regarded as a servant. The decency in this is that, it gives both the employee and the employer the sense of belonging in the establishment.

Though the employer has the power to direct and dictate the nature of the job and its sequences, also, because the employer pays wages or salary to the employee, he has some economic edge over the person receiving it. But in the production level, the person hiring (i.e. the employer) cannot do without the hired (that is the employee).

Most importantly, the person whose services are being hired has the right to continue or discontinue the relationship depending on the terms of the contract of employment. Same is applicable with the hirer. Therefore, they exist on an equal importance in the scale of relationship.

Though officially, the hierarchy of office may dictate respect in favour of those high in-the hierarchy, but still, those below the ladder of the official dome cannot be regarded as servants of those above. The notion of master and servant was borne out of the private relationship of private enterprises. The entrepreneur obviously is at the helm of affairs, while persons aiding in the continuous survival of the entrepreneur’s business stand below him. Since this is backed up by the payment of wages or salary, the entrepreneur is seen as a demigod in the relationship.

The twist is in a government establishment. In this system obviously, the government becomes the employer while every other person becomes the employee. Who in government represents the master since everyone is an employee of that establishment. No master, no servant. All are employees of the government. Then who is Government? This is the twist.

The Chambers Twentieth Century Dictionary defines MASTER as one who commands or controls; A Lord or owner, a leader or Ruler, a teacher, an employer etc. The same dictionary defines employer as that which engages or occupies. In the same vein, the same dictionary defines SERVANT to mean, one who is hired to perform services, especially in personal or domestic services or a menial kind or form of labour for another or others: One who is in the services of a state, public, a company, or other bodies. That could mean a person engaged in the service of the other.

The earliest judicial pronouncement was in 1880 by Bramwell L.J. In Yawens v Noakes¹ where he said:

A servant is a person subject to the command of his master as to the manner in which he shall do his work

CONTRACT OF EMPLOYMENT

We know of different kinds of contracts. We hear of general contracts, contract of employment, independent contractor etc. We are only concerned here with the contract of employment. A general contract is that which is commercial in nature. Its principles apply in many others. To define contract of employment is to distinguish it from independent contractor. In this regard, a distinction has to be made between a contract which produces or whose end products are goods and services of any kind and the contract which produces only services leading to the final product of the business.² There is a cloud of uncertainty as to this distinction. In any case, we shall attempt to distinguish them, properly and understandably.

The issue to determine is the nature and not the type of contract. This is whether the contract forms part and parcel of the employer’s business. If it is a mere conduit pipe through which the main business of the employer is executed, it is not a contract of employment. It is a mere service in the process of the employer’s business.

According to Lord Denning L.J:

An employee is a person whose work is part and parcel of the whole business of the employer. On the other hand, an independent contractor is a person whose service merely aids the whole or part of the business.3 This is usually regarded as the integration test.

Contract for services is merely a conduit pipe to the whole business. Whereas contract of service is an integral part of the whole business. In his judgement Lord Denning reasons that if a person’s work is an integral part of the whole business he should be regarded as an employee. Where on the other hand, the work is not an integral part of the business he should be an independent contractor. Thus, he said:

One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business, whereas under a contract for services, his work, although done for the business, is not integrated into it but is merely accessory to it.4

However, both the courts and learned authors have applied different tests to distinguish an employment contract from an independent contractor. The control test has been given further prominence in judicial opinions than the integration test enunciated by Lord Denning L.J. Mackenna J. in considering what is meant by contract of services, applied three conditions. He stated thus:-

(1) The servant must agree that in consideration of wages or other remuneration, he will provide his own work and skill in the performance of some services for his master.

(2) The servant must agree, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in sufficient degree to make that other the master.

(3) The other provisions of the contract must be consistent with its being a contract of service. In describing point 2 above, His Lordship said:

". . . control includes the power of deciding the thing to be done the way in which it shall be done, the means to be employed in doing it, the time, place and how it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one part the master and the other his servant".5

Obviously, the bulk of His Lordship’s definition rests on control. With due respect, the test (even in 1968) when it was applied could not stand the test of the period. It cannot settle in harmony with the technological realities of modern time.⁶

In Ready Mixed Concrete case (supra), the issue for consideration was whether the driver of a cement delivery lorry was an employee or an independent contractor with the Plaintiff. The contract under which they operated stated that the driver was self-employed. It provided inter-alia that the driver would make available a vehicle. That it was the duty of the driver to paint the vehicle in the company’s colours. He was also to maintain and insure the said vehicle.

The driver according to the contract was to wear the company’s uniform and to drive on the company’s business for the maximum number of hours legally permissible each week. He was also obliged to obey all reasonable orders from the company. He was paid for his services at a certain rate per mile. The Minister of Pensions and National Insurance classified the worker as an employee. The company appealed. Court of Appeal held that, the driver was not an employee but an independent contractor. The court found nothing inconsistent with the contention that the driver was running his own business.

The test applied by the Appeal court is not in harmony with the technical realities of our modern time. The economic reality test is akin to the integration test. Integration test examines the nature of the job, permanency of the relationship, the skill and possibly the control of the worker by the hirer. There are some situations when the employer is ignorant of the details of the job of the person he hired, he therefore cannot control him in whatever modalities the worker would want to apply. This is moreso in service contract.

In our economic realities today, the situation is different. When a person gets the services of another the relationship between them is differently classified. The classification is dependent upon certain factors. For example, the standard or professional status of the person will be taken into consideration.

EMPLOYEE AND EMPLOYER

In the Nigeria Labour Act an employee could be said to be a person who has entered into a contract of employment or in a situation where the contract has ceased, a person who has worked in that status. In most cases, what amounts to a contract of employment is left for the court to determine.⁷. The definition here is absolutely necessary since only the employers are protected by the law and they also enjoy the full benefits of all the rights provided under the law. For example, a self employed person who has agreed to do a job for another can be said to be on the employment of that other person but yet has no contract of employment.

The term Master/Servant or Master and Slave have been subsumed into the modern employment laws and definition as to bring the modern situation into reality. John Soundera in second edition of words and phrases legally defined at page 157 defines employee under the law thus:

an individual who has entered into a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, be it expressed or implied, oral or in writing and whether it be a contract of service or of apprenticeship and cognate expression shall be construed accordingly.

WHO IS AN EMPLOYER?

The Truck Act of 183I defined employer to mean Masters, bailiffs, foremen, managers, clerks and other persons,